What happens at the pre-action stage of a clinical negligence claim?
We explain the different letters and requests you might receive from a patient or their solicitor, and how we can help you prepare your responses.
A letter of notification
A letter of notification is often sent when a patient first instructs solicitors to investigate a potential clinical negligence claim on their behalf. This may or may not contain a brief background and some details of alleged negligence and is often accompanied by a subject access request to request the patient’s medical records so that they can investigate the claim.
Subject access request
Provided you have a signed letter of authority from the patient, you can safely disclose information to the solicitor requesting it. If you have any concerns that the request is not valid, you can contact the patient for clarification. Once you are satisfied that the applicant is authorised to access the information, you should act on the request without undue delay and at the latest within one month of receipt.
Unless otherwise specified, we would recommend providing photocopies or screenshots of the patient’s entire clinical record, including all examination notes, tests, referrals, visual field plots, imaging, dispensing notes etc. Any imaging should be sent in high-resolution jpeg format if possible.
The patient records should be sent by “recorded delivery” if sent in hard copy format or “password encrypted” if sent electronically. Another way to send the records securely is to redact any personal identifiable information (for example the patient’s name and address).
In most cases you cannot charge a fee to comply with a subject access request. The only exception to this is if the request is “manifestly unfounded” or “excessive” – this is unlikely to apply in the case of first-time requests.
Letter of claim
A letter of claim is the first main step in the claim. This is where the claimant details their allegations of breach of duty and causation. A letter of claim should only be prepared if, on receipt of their medical evidence, the claimant’s solicitors consider that on the balance of probabilities (that is is more than 50% likely), the claim would be successful at trial.
After we receive a letter of claim we request the claimant’s full medical records so that we can begin our investigations. We have four months from service of the letter of claim to conduct our own investigations and prepare a letter of response, which is where we respond to each allegation of breach of duty and causation contained within the letter of claim.
At this stage or at the letter of notification stage, we will ask to you prepare a short statement based on your examination(s) of the patient which we will consider when preparing the letter of response.
Letter of response
A letter of response is prepared on your behalf and on receipt of our medical evidence. This is designed to address any inconsistencies in the background as presented in the letter of claim and to respond to the allegations of breach of duty and causation.
The letter of response is sent to you for your review and comment in advance of it being served, it will also be reviewed by our experts, clinical advisors and insurer clients.
After we have served the letter of response, the claimant will then either discontinue the claim or proceed to issue the claim at court. Generally speaking, the claimant will have until three years after the examination date or their 'date of knowledge' of the alleged negligence (limitation) to begin the claim in court.